Punjab-Haryana High Court
Pritam Singh vs State Of Haryana on 26 March, 2010
Criminal Appeal No. 1452 SB of 2004 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 1452 SB of 2004 (O&M)
Date of decision: 26-3-2010
Pritam Singh ......... Appellant
Vs
State of Haryana .........Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present: Mr. N.K.Sanghi, Advocate, for Kulwant Singh appellant.
(in Criminal Appeal No. 2052 SB of 2009)
Mr. G.S.Kaura, Advocate, for Pritam Singh appellant.
(in Criminal Appeal No. 1452 SB of 2009)
Mr. Raja Sharma, Assistant Advocate General, Haryana
HARBANS LAL, J.
This judgment shall dispose of Criminal Appeal No. 1452 SB of 2004 filed by Pritam Singh accused and Criminal Appeal No. 2052 SB of 2004 moved by Kulwant Singh having arisen out of the judgment/order of sentence dated 8.4.2004 passed by the court of learned Additional Sessions Judge, Panipat (Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985) vide which she convicted and sentenced both the accused to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1.00 lac each under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity the Act) and in default of payment of fine, the defaulter to further undergo rigorous imprisonment for 2 ½ years.
Shortly put, facts of the prosecution case are that on 22.8.1999 Criminal Appeal No. 1452 SB of 2004 (O&M) 2 Rajinder Singh Inspector-SHO of Police Station City, Panipat amongst other police officials happened to be present near the outer gate of bus stand, Panipat in connection with the investigation of a criminal case. Constables Shyam Lal and Sewa Singh were also associated. Meanwhile, the accused Pritam Singh and Kulwant Singh carrying a gunny bag were spotted approaching from inside the bus stand. On catching sight of the police party, they got perturbed and by turning back started walking in a haste manner, which aroused suspicion in the mind of the Inspector who intercepted them with the aid of his companions. One edge of the gunny bag was held by Kulwant Singh and the other one was in the hand of Pritam Singh. Suspecting the contents of the gunny bag to be some contraband, the accused were offered to be searched before a Gazetted Officer or a Magistrate. They opted to have search of the gunny bag in the presence of a Gazetted Officer. On receipt of a telephonic message, Partap Singh D.S.P. alongwith his staff and official photographer came at the spot. On search of the gunny bag, opium was recovered. When weighed, it came to 4.400 kgs out of which, 100 grams was separated to serve as a sample and converted into a parcel. The residue was also turned into a parcel. The case property alongwith the sample parcel was sealed with seal RS and seized vide recovery memo. The seal after use was handed over to ASI Dharamvir Singh. The ruqa was sent to the Police Station, where on its basis formal F.I.R. was registered. The accused were arrested. After completion of investigation, the charge-sheet was laid in the court for trial of the accused.
The accused Pritam Singh and Kulwant Singh were charged under Section 18 of the Act to which they did not plead guilty and claimed Criminal Appeal No. 1452 SB of 2004 (O&M) 3 trial. In order to bring home guilt against the accused, the prosecution examined PW-1 Head Constable Rajinder Singh, PW-2 Constable Rajinder Singh, PW-3 Dy.S.P. Partap Singh, PW-4 Inspector Rajinder Singh Investigator, PW-5 Head Constable Giani Ram and closed its evidence by tendering Ex.P-16 the report of the Forensic Science Laboratory.
When examined under Section 313 of Cr.P.C., both the accused denied all the incriminating circumstances appearing in the prosecution evidence against them and pleaded innocence as well as false implication. Pritam Singh accused came up with the following plea:-
"I am innocent. In fact myself and Kulwant Singh co-accused had gone to Delhi to fix the date for the marriage of my daughter Rupinder Kaur who had already been engaged with Boby son of Darshan Singh of Delhi. Boby son of Darshan Singh is the son of Kulwant Singh's mother-in-law's sister. We had gone on 21.8.1999 and after fixing the date of 23.11.1999 for the marriage, We were returning back. We got down on the main road at Panipat at about 6.00 p.m. and were taking tea on the road side, when two constables came to us and enquired about our whereabouts. We told them the above facts, but they did not believe us and told us that we appear to be terrorist from Punjab and on this, they took us in the police station and fabricated the present case. We told them that we will proceed against the police for mis-behaving and unlawful detention. We are illiterate and our thumb impressions were obtained on number of blank papers. We do not know their contents. We are Criminal Appeal No. 1452 SB of 2004 (O&M) 4 poor masons. We had tickets upto Khanna which were taken into possession by the police in the Police Station. A sum of Rs.400/- were recovered from me and Rs.300/- from my co- accused. Our bus did not enter into the bus stand. The bus stood on the main road as it was a long route bus. We are innocent and have been falsely implicated in this case."
This plea was also adopted by accused Kulwant Singh. In their defence, they examined DW-1 Jarnail Singh son of Bakhtawar Singh, DW-2 Jarnail Singh son of Piara Singh, DW-3 Ajit Singh, DW-4 Nirmal Singh and DW-5 Darshan Singh.
After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced both the accused as noticed at the outset. Feeling aggrieved therewith, they have preferred these appeals.
I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.
The learned counsel for both the appellants making short-shrift of their arguments submitted in one voice that (a) as alleged, the appellants were apprehended near the outer gate of bus stand Panipat around 6.30 P.M. Admittedly it is a public place which remains crowed throughout with passengers, hawkers and rehariwalas. The police could have easily joined some independent witness in the investigation, but despite the alleged apprehension of theirs at the public place, none of the independent witness was associated in the investigation;(b) according to the prosecution story 100 grams opium was separated as a sample, however, in the report of Criminal Appeal No. 1452 SB of 2004 (O&M) 5 Forensic Science Laboratory Ex.P-16 it is mentioned that the weight of the sample was 115 grams. Thus, obviously there is a difference in the weight of the sample which gives an inkling that the sample was tampered with; (c) Section 50 of the Act is mandatory in nature, which requires that before taking search of the accused on suspicion of having contraband, it is incumbent upon the investigator to give a notice on the accused that they have a right to be searched in the presence of a Gazetted Officer or Magistrate. The importance of the notice is that the police must inform the accused that he has right to be searched before the Magistrate or the Gazetted Officer, however in the present case, the joint statement was recorded on a paper, which was thumb-marked by both the accused persons, though it is well settled that joint statement is not a good compliance for the purpose of Section 50 of the Act; (d) the seal after use was allegedly entrusted to ASI Dharamvir Singh who being a police official, the seal could have been taken back from him for tampering with the contents of the sample and thus, the possibility of the sample having been tampered with, cannot be ruled out; (e) as alleged by the prosecution the gunny bag was having 4.400 grams of opium and one edge of the same was held by Kulwant Singh and the other was clutched by Pritam Singh. It is highly improbable that the gunny bag containg such a small weight would have been carried by two persons. It improbablises the prosecution story. These lacunae cumulatively strike a death knell to the prosecution case.
The learned State counsel countered these arguments by urging with great vehemence that by now it is well settled that the evidence tendered by police officials has to be weighed in the same scales as of others Criminal Appeal No. 1452 SB of 2004 (O&M) 6 and that being so, the case of the prosecution cannot be thrown out of hand, merely because of non-joining of a public man. As regards the compliance of Section 50 ibid, Ex.P-1 the consent memo would reveal that the provisions of this Section have been complied with as per their true letter and spirit. The weight of the sample parcel would have been increased due to the weight of the polythene bag and the appellants for the sake of their convenience would have held the bag in the manner suggested by the prosecution.
I have given a deep and thoughtful consideration to these submissions.
In Roop Singh Vs. State of Punjab 1996(1) Recent Criminal Reports(Criminal)146 the Division Bench of this Court has held as under:-
"It is certainly not the law that in each and every case irrespective of the case and attending circumstances, the evidence of the police officer needs corroboration before it is accepted or to be acted upon. The presumption that a person acts honestly, applies so much in favour of a police officer as of other persons, and it is not the judicial approach to distrust and suspect him without good grounds therefor. Even if the testimony of a police officer requires some corroboration to be acted upon, the corroboration does not necessarily mean that the witness should be corroborated by other witness only. The testimony of a police officer can be corroborated by way of some intrinsic circumstantial evidence available on the record. Criminal Appeal No. 1452 SB of 2004 (O&M) 7 In fact, in a given case, there may not be any other direct evidence of the witness to corroborate the evidence of the police officer, but at the same time, there is nothing to reach at the conclusion that the police officer was malicious and interested in falsely framing up the accused and there was certain in-built and unimpeachable circumstantial evidence on the record to support the evidence of the police officer, then in such a case implicit reliance can be placed upon the testimony of such a police officer."
In Appabhai and another Vs. State of Gujarat 1988 (Supp) Supreme Court Cases 241, it has been held as under:-
"Merely because of the failure on the part of the prosecution to produce any independent witness to the incident that occurred at a public place like a bus stand, where there must have been several witnesses, the prosecution case cannot be thrown out or doubted. Generally people ware insensitive when a crime is committed even in their presence. The court instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused."
In State of Punjab Vs. Balbir Singh, 1994(1) Recent Criminal Reports(Criminal) 736, it has been ruled by the Hon'ble Supreme Court that "there is no bar in recording the conviction by relying upon the statements of police officers. It is well settled that the testimony of Criminal Appeal No. 1452 SB of 2004 (O&M) 8 a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration." In Chander Shekar and another Vs. The State 1986(2) Crimes 419, it was held that "One of the greatest disadvantages of living urbanized areas is that the people are out of sympathy with their neighbours and fellow citizens. This is for a variety of reasons. None wants to get involved in such matters. Our experience is that in the recent past, it is really becoming difficult to involve public witnesses in court cases particularly in cases of capital offences. It is common place experience that in Delhi if an accident takes place, hardly any body feels concerned. Life is mechanical and fast that no body has time to sympathize with a fellow citizen. We blame none for it as this the life style growing in highly urbanized areas. Even those who feel concerned keep away for fear of their own security and getting involved in tardy proceedings. There is a subdued murmur that law and order agency has failed to provide security to the law abiding citizens and what rules now, is the might and ingenuity of the criminals. Under these circumstances, it will be dangerous not to rely on relation witnesses and police witnesses in such matters. Of course, provided, such witnesses are confirmed to be truthful when tested at the yardstick of the peculiar facts and circumstances of each case."
Adverting to the instant one, a careful delving into the evidence on record would reveal that there is nothing to conclude that the Investigator was malicious and interested in falsely framing up the appellants. To add further to it, the Investigator being of the rank of Criminal Appeal No. 1452 SB of 2004 (O&M) 9 Inspector could have not afforded to arrange and plant such a huge quantity of opium upon the appellants. As surfaces in his cross-examination, "I tried to join the independent witnesses in the investigation, but they did not oblige."Obviously, he could not succeed in his effort to join a public man. The common men experience lends credence to the fact that in the present day situation prevailing in the society, the independent witnesses hesitate to come forward to join a search and seizure with the impression in mind that if they did so and appeared as prosecution witness against the accused, they will invite wrath of the accused. Nay this, it too lurks in their mind that they will have to come to the court to depose may be for one time or number of times by wasting their precious time, money and energy. However, a prosecution witness is entitled to the reimbursement of expenses as prescribed in Chapter 9 of the High Court Rules and Orders Volume III, but the admissible rates are far less than the expenses actually incurred by the witness. Thus, there are numerous factors for which independent witnesses shun away from becoming a witness in recovery cases. It is a celebrated dictum of law that the evidence of the official witnesses cannot be disbelieved or distrusted, merely because of their official status. Their evidence is as good as of others. However, the same is to be scrutinized with due care and caution. An identical view has been taken by the Division Bench of this Court in Ganesh S/o Kapil Dev, resident of Haraj, Police Station Sheela Ganj, Dist. Moti Hari (Bihar) Vs. The State of Haryana 2009(2) Recent Criminal Reports (Criminal) 39. In the instant one, on analyzing the prosecution evidence in a manner as provided by law, it turns out that when witnesses were baptized with cross-examination they stood Criminal Appeal No. 1452 SB of 2004 (O&M) 10 like a rock. Thus, to my mind, their unshaky and unimpeachable evidence can be relied upon without any demur.
Of course, the weight of the sample parcel as mentioned in Ex.P-16 the Forensic Science Laboratory's report was 115 grams in polythene. But it is not to be lost sight of the fact that this weight also included the weight of polythene bag. To secure the contents of sample, a polythene bag of large size would have been used. As such, it would be going too for to throw the prosecution case out of hand simply because of the fact that the weight of the sample was found to be a little more than drawn in actuality.
In Bharatbhai Bhagwanjibhai Vs. State of Gujarat A.I.R. 2003 Supreme Court 7, it has been held as under:-
"Admittedly, on perusal of the evidence as is available on the records, it is clear that there was no prior information to the police officer that the accused is likely to come with a narcotic substance,neither the inspector had any reason to believe from his personal knowledge or information that the accused is likely to be in the area from where he was found with the contraband item. As a matter of fact, even at the time of effecting search, there was no knowing that an offence under Chapter IV of NDPS Act has been committed by the accused. The Inspector merely suspected the commission of an offence by reason of the fact that the accused started running on seeing the patrolling party. The evidence on this score is clear and categorical to the effect as discussed hereinbefore.Though the Panchas have Criminal Appeal No. 1452 SB of 2004 (O&M) 11 given a slightly different version of the search and seizure, but that does not by itself take away the primary evidence as regards the search and subsequent discovery of Charas in the possession of the accused and the resultant seizure thereof. The contextual facts thus depict a situation not covered within the purview of Section 50. In this context, the observation of the Constitution Bench of this Court in State of Punjab v. Baldev Singh (1999 (6) SCC 172) also lends credence to the above statement of law. In paragraph 12 of the Report, this Court stated as below :
"12.On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted." (emphasis supplied) It is apt to be borne in mind that the recovery in the case in hand has been effected from the bag. In re:Kalema Tumba Vs. State of Maharashtra, 1999(4) Recent Criminal Reports (Criminal) 575(Supreme Court) 2 kgs of heroin was recovered from the baggage of the accused and not from his person. It was ruled by the Apex Court that " if a person is carrying a bag or some other Criminal Appeal No. 1452 SB of 2004 (O&M) 12 article with him and narcotic drug or the psychotropic substance is found from it, it cannot be said that it was found from his person." In re: Megh Singh Vs. State of Punjab, 2004(1) Apex Criminal 482, it has been held that "a bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or container or a bag or premises."
A comparative study of Bharatbhai Bhagwanjibhai's case (supra) as well as the one in hand would reveal that their facts are somewhat identical. The instant one is also a case of chance recovery. Thus, on viewing the matter in the backdrop of Bharatbhai Bhagwanjibhai's case(supra), it turns out that the notice under Section 50 of the Act was not required to be served being not a case of personal search as the recovery was effected from the bag. The Investigator as a matter of abundant caution had served the notice Ex.P-1 under Section 50 ibid. The Apex Court has gone to the extent to lay down in State of Punjab Vs. Baldev Singh 1999 (3) Recent Criminal Reports(Criminal) 533 SC that oral communication under Section 50 of the Act is also valid. This view has also been followed in Sajan Abraham Vs. State of Kerala 2001(1) Recent Criminal Reports (Criminal) 808. In Balbir Kaur Vs. State of Punjab 2009(3) Recent Criminal Report (Criminal) 580, it has been held that "the language of Section 50 is implicitly (sic explicitly)clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh' case. In Avtar Singh Vs. State of Punjab 2002(4) Recent Criminal Reports (Criminal) 180, it has been held by the Supreme Court that "The Criminal Appeal No. 1452 SB of 2004 (O&M) 13 word 'possession' no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together by the minimum requisite element which has to be satisfied in custody or control over the goods." Reverting back to the instant one, as noted supra, herein the prosecution has satisfied that both the appellants were in custody and control over the contraband contained in the recovered bag. Before reducing the notice into writing, it would have certainly been orally communicated to each appellant as to whether or not he wanted to be searched in the presence of a Gazetted Officer or a Magistrate. Thus, from whatever angle the matter may be viewed, the appellants cannot be deemed to have been prejudiced in any manner. To cap it all, the provisions of Section 50 were not attracted in this case.
There being no independent witness, the seal had to be handed over to some police official. There is no evidence to the effect that the contents of the sample were tampered with at any stage. As mentioned in Ex P-16, the seals on the sample tallied with the specimen seal as per the forwarding authority letter. The affidavit Ex.P-9 of MHC Naresh Kumar and affidavit Ex.P-10 of Constable Sumer Chand were tendered in evidence by the prosecution. Their evidence being of formal character, they were tendered for their cross-examination. As is borne out from the record, the accused did not opt to cross-examine these witnesses. Thus, it is clear and unambigous that they were fully satisfied that the contents of the sample parcel remained in proper custody and were not tampered with at any stage. In Piara Singh Vs. The State of Punjab 1982 Chandigarh Law Reporter (2) 447 the Full Bench of this court has held as under:-
Criminal Appeal No. 1452 SB of 2004 (O&M) 14
"In the ultima ratio criminal trials ordinarily turn and must continue to do so on the credibility and acceptability of the evidence on record. It is not possible to hold that a criminal trial would succeed or fail merely on the technicality of the delivery of an investigating seal to a third person or the latter's refusal or inability to appear as a witness about the same. It is more so in the admitted position that there is no statutory requirement what-so-ever to this effect.
To conclude, it must be held that there is neither a statutory requirement nor a precedential mandate for handing over the seal by the police officer in the course of an investigation to a third person forthwith. It necessary follows therefrom that even where it has been so done, the non-production of such a witness cannot by itself affect the merits of the trial."
On examining the matter, in view of the afore extracted observations, the seal was not required to be entrusted to a public man.
As set forth by the prosecution, one edge was held by Kulwant Singh appellant and the other was in the hand of Pritam Singh appellant. They would have adopted this mode to give an impression to the passers-by that they are sharing the load of the bag. To my mind, holding of the bag in such a fashion, itself speaks volumes of their being in actual and physical possession of the same.
In a nut shell, the defence plea is that the appellants had gone to Delhi to fix the date for the marriage of Rupinder Kaur the daughter of Pritam Singh appellant. When they were on their way back from Delhi and Criminal Appeal No. 1452 SB of 2004 (O&M) 15 had got down on the main road at Panipat at about 6.00 P.M. and were taking tea on the road side, meanwhile, they were apprehended. Thus one thing is clear that they have admitted their presence at the place of the recovery. Under the stress of cross-examination, Jarnail Singh DW-1 has testified that "I did not accompany the accused to Delhi in any connection. I remember the date because I had actually gone to Panipat to inquire the matter and I found both the accused in police lock-up at that time. We generally meet with each other being neighbour." This witness being neighbour of the appellant, it was not difficult for the latters to procure his services to depose in the Court in their favour. He being a member panchayat would have got transacted a resolution against the conduct of the Investigator and copies thereof would have been endorsed to the higher authorities of the police hierarchy. There being no such evidence his ipse dixit can hardly inspire confidence. It is in the cross-examination of Jarnail Singh DW-2 that "There is no photograph of mine in the album shown to me today as photos were taken of both the relations of the parties. I do not remember the exact date when the accused came to Delhi for fixing the date of marriage but I came after 6-7 months of ring ceremony. Both the accused are related to each other." This evidence too does not advance the cause of the appellants in any manner. As regards Ajit Singh DW-3, he has stated in his cross-examination that "I knew Kulwant Singh as he had met me at the "mangni" ceremony at the house of accused Pritam Singh and he had arranged for the matrimonial alliance."In his examination-in-chief, he has deposed that "I know Pritam Singh accused present in the court. He is a mason and he constructed my kothi in the year 1997-98." Thus, it was not Criminal Appeal No. 1452 SB of 2004 (O&M) 16 difficult to woo this witness to depose in favour of the appellants. It is in the evidence of Nirmal Singh DW-4 that "I know both the accused. Kulwant Singh accused is my co-villager. He is a carpenter and owns a saw mill. My house is near the house of said Kulwant Singh. Pritam Singh accused was on visiting terms with Kulwant Singh." It is in his cross-examination that I have not obtained any sales tax number. Kulwant Singh has also no sales tax number of the shop. xx xx xx I am M.C." This evidence can be well interpreted to mean that this witness is putting up in the neighbourhood of Kulwant Singh appellant. For this reason, it was not difficult to procure his services to depose in favour of the appellant. As testified by Darshan Singh DW-5 that "My son Bobby was got engaged with the daughter of Pritam Singh accused at the instance of my relation Kulwant Singh accused at village Majra about 3 / 4 years back. The engagement ceremony was performed at the house of Pritam Singh accused in village Majri and that function was attended by me, my wife and my son Bobby alongwith Kulwant Singh and other relations. Our snaps were taken at that time. I have seen my photo in Ex.DA at point A and Rupinder Kaur daughter of Pritam Singh and wife of Bobby." Under the stress of cross-examination, he regretted his inability to tell the date, month and year of the ring ceremony. Had this ceremony been verily performed, this witness being father of Bobby with whom the daughter of Pritam Singh appellant was allegedly betrothed, would not have forgotten atleast the month or year of ring ceremony. Furthermore, this witness went on to say in his cross- examination that the accused persons left my house at about 5 A.M. morning whereas the prosecution version is that they were apprehended at Criminal Appeal No. 1452 SB of 2004 (O&M) 17 the bus stand of Panipat around 6.00 P.M. Distance between Panipat and Delhi is not that much, as would have consumed more than 12 hours to cover it. In my estimation, the entire defence story has been coined to save the appellants from being punished.
No other point has been urged or agitated by either counsel. On scrutinizing and analysing the entire evidence with due care and caution, it emerges out that the prosecution has been able to bring home guilt against both the appellants. Sequelly, these appeals being bereft of any merit are dismissed.
The Registry is directed to send a copy of this judgment to the learned trial Court as well as the learned Chief Judicial Magistrate, Panipat to take steps for arrest of both the accused-appellants to serve unexpired portion of their sentence.
Since the appeal has been decided, all pending Criminal Miscellaneous,if any, also stand disposed of.
(HARBANS LAL) JUDGE March 26 , 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes/No